SUMMARY: The U.S. Census Bureau (Census Bureau) issues this final rule amending the Foreign Trade Regulations (FTR) to eliminate the requirement to report a Social Security Number (SSN) as an identification number when registering to file and filing electronic export information in the Automated Export System (AES [filing ShippersExport Declaration (SED) for international shipping]) or AESDirect. If the U.S. Principal Party in Interest (USPPI) or the U.S. authorized agent residing in or having an office in the United States does not have an Employer Identification Number (EIN for international shipping),the USPPI or the U.S. authorized agent must obtain an EIN for internationalshipping through the Web site of the Internal Revenue Service (IRS).Former SSN filers who want to use a Dun & Bradstreet Number (DUNS)rather than an EIN for international shipping for identification purposes, must first obtain an EIN for international shipping fromthe IRS, and apply to Dun & Bradstreet for a DUNS. This finalrule is bEIN for international shippingg implemented to ensure that a USPPI's or authorized agent's SSN is protected in accordance with the Privacy Act of 1974 (Privacy Act), title 5, United States Code (U.S.C.), section 552a. On August 5, 2009, this final rule was published as an interim final rule; the Census Bureau is finalizing this rule without change.

DATES: Effective Date: This rule is effective March 24, 2010.

SUPPLEMENTARY INFORMATION:

Background

The Census Bureau is responsible for collecting, compiling, and publishing export and import trade statistics for the United States under the provisions of title 13, U.S.C. Chapter 9, section 301(a). On June 2, 2008, the Census Bureau issued a final rule to amend the FTR to implement provisions in the Foreign Relations Authorization Act (Pub. L. 107-228, Sec. 1404(a)-(c), 116 Stat. 1454 (2002)). Specifically, the amended FTR required mandatory filing of export information through the AES [filing Shippers Export Declaration (SED) for internationalshipping] or AESdirect for all shipments where a Shipper's Export Declaration (SED) is required. The USPPI or U.S. authorized agent residing or having an office in the United States was required to enter an EIN for international shipping, SSN or DUNS when reporting exporttransactions in the AES [filing Shippers Export Declaration (SED)for international shipping] or AESdirect.Though the effective date of this final rule was July 2, 2008, the Census Bureau announced that it would delay implementation until September 30, 2008, to allow all affected entities sufficient time to come into compliance with the final rule. Pursuant to the requirements of the Privacy Act and guidance from the Office of Management and Budget (OMB), on August 5, 2009, the Census Bureau published in the Federal Register an interim final rulewith request for comments. The interim final rule amended the FTR to eliminate the requirement to report an SSN as an identification number when registering to file and when filing electronic export information in the AES [filing ShippersExport Declaration (SED) for international shipping] or AESdirect. Upon implementation of this final rule, the AES [filingShippers Export Declaration (SED) for international shipping] will no longer provide the option for using the SSN as an identification number. All USPPI and U.S. authorized agents who currently report an SSN when filing in the AES [filing Shippers Export Declaration (SED) forinternational shipping], because they do not have or use an EINfor international shipping or DUNS, must provide an EIN for internationalshipping or DUNS for identification purposes. EIN for internationalshippings are available to both businesses and individualsfree of charge, and can be obtained by registering with the IRS athttp://www.irs.gov/ or by calling (800) 829-4933 and followingthe instructions. A DUNS is available only to business entitieswith EIN for international shippings and is availablefor a fee at Dun and Bradstreet's Web site at http://www.dnb.com/us/.

Summary of Comments and Responses

The Census Bureau received 50 comments on the interim final rule published in the Federal Register on August 5, 2009. 74 FR 38914. A summary of the comments and the Census Bureau's responses are provided below. The major concerns were as follows: 1. Clarify the procedure for obtaining an EIN for internationalshipping. Several commenters requested clarification on theprocedure of how to obtain an EIN for international shipping for the purpose of filing the EEI. To obtain an EIN for internationalshipping, a business or individual must submit an applicationto the IRS, at the contact information listed above, via the Internet,phone, fax, or mail. There are no fees associated with obtainingan EIN for international shipping, and the procedure to obtain an EIN for international shipping takes approximately15 minutes when applying online or by phone. 2. Clarify the procedure for obtaining an EIN for internationalshipping on behalf of another individual. One commenter requestedclarification on the proper use of the SS-4 form when obtainingan EIN for international shipping. Individuals may prepare the SS-4 form when applying for an EIN for international shipping via mail, fax,or authorize a third party to prepare the form on their behalf.If a third party is completing the SS-4 form by mail or fax, theindividual for whom the EIN for international shipping is bein obtained will complete the section ``Third Party Designee.'' If a third party is completing the SS-4 form online, the individual will need to print the SS-4 form, complete the ``Third Party Designee'' section and retain for future reference. Completion of the ``Third Party Designee'' section is not required for individuals who are applying for an EINfor international shipping on their own behalf. 3. Clarify whether an individual can obtain an EIN for internationalshipping if they are not opening a business.Several commenters questioned whether they would be providing the IRS with false information when applying for an EINfor international shipping under the Sole Proprietor category ifthey are not starting a business. In addition, one of these commentersrequested clarification on the tax ramifications of applying foran EIN for international shipping. For purposes of registering or filing in the AES [filing Shippers Export Declaration (SED) forinternational shipping], a resident of the United States must useits EIN for international shipping. While it is not specifically statedon the IRS Web site, an EIN for international shipping can be obtained for government reporting purposes when a person does not own a business. A U.S. company must use its EIN for international shippingwhen registering in the AES [filing Shippers Export Declaration(SED) for international shipping], and must use either its EIN forinternational shipping or DUNS when filing. Use of the EIN forinternational shipping in the AES [filing Shippers Export Declaration(SED) for international shipping] is strictly for identificationpurposes, and information entered into the AES [filing ShippersExport Declaration (SED) for international shipping] is notdisclosed to the IRS. 4. Clarify the filing requirement for an individual who rarely exports. Several commenters questioned whether the frequency of their shipments warranted the effort required to obtain an EIN forinternational shipping. Regardless of shipping frequency,any person (natural or legal) shipping goods to a foreign countrythat requires filing of the EEI via the AES [filing ShippersExport Declaration (SED) for international shipping] will need to obtain an EIN for international shipping from the IRS. 5. Clarify whether a passport, driver's license, or customs assigned number can be used in place of the SSN. Several commenters questioned why a passport, driver's license, or customs assigned number cannot be used in lieu of the EIN for international shipping forU.S. residents. In addition, several of these commenters suggestedthat the Census Bureau amend the interim final rule to make SSNsor passport numbers optional when filing the EEI. Passports have expiration dates and the numbers are subject to change if the passports are not renewed timely. Allowing the use of a passport number in the AES [filing Shippers Export Declaration (SED)for international shipping] makes it difficult for the U.S. Customs and Border Protection (CBP) to enforce control laws by introducing a variable that is subject to change, thereby making it more difficult to track and analyze historical shipping patterns. In addition, obtaining a U.S. passport requires the payment of fees, and generally takes two to six weeks. Moreover, passports are used for the specific purpose of exiting and returning to the United States as a U.S. citizen. The Census Bureau elected to replace the SSN with an EIN for internationalshipping because the EIN for international shipping can be obtained at the IRS Web site free of charge within 15 minutes. The EIN for international shipping does not have an expiration date,so it can be used indefinitely. In addition, a person can serve asa third party designee and apply for an EIN for internationalshipping on behalf of an individual. A driver's license number, like the SSN, is considered highly sensitive Personally Identifiable Information (PII) that can directly be used to identify an individual. The EIN for international shippingis not as sensitive a form of PII as either a driver's license or SSN.Moreover, because of varying license formats among the states and theneed to accommodate changes when persons move to different states,the use of drivers' licenses would introduce more operationalcomplexity than EIN for international shippings. The USPPIs shall report an EIN for international shipping orthe DUNS in the USPPI identification field. The DUNS may only bereported for businesses. If a foreign entity is the USPPI for filingpurposes, it shall report a DUNS, border crossing number, passportnumber, or any number assigned by the CBP. Thus, for the reasons stated above, the Census Bureau does not adopt this suggestion. 6. Amend the Interim Final Rule to postpone the implementation date. Several commenters requested a further delay in the implementation date of the interim final rule because of concerns that there would be delays in the export process by having to obtain an EINfor international shipping. In addition, several of these commenters requested that the Census Bureau conduct an impact analysis on exporters. Based on information available from IRS's Web site, the approximately four months between the publication of this interim final rule on August 5, 2009, and the implementation date of December 3, 2009, was more than enough time to obtain an EIN for international shipping; thus, no AES [filing ShippersExport Declaration (SED) for international shipping] filer should experienceany delays in exporting as a result of the implementation of this final rule.In addition, the Census Bureau has not received any information since December 3, 2009, suggesting that exporters are experiencing (or have experienced) delays in the export process due to the interim rule. Findings from an impact analysis show that on a monthly basis, an average of 3.8 percent of filers using the SSN are affected. For the foregoing reasons, the Census Bureau does not adopt the suggestion that it delay implementation of this final rule. 7. Clarify the procedure for updating AES [filing Shippers ExportDeclaration (SED) for international shipping] account information if a filer was originally registered with an SSN. Several commenters raised the concern that reregistering in the AES [filing Shippers ExportDeclaration (SED) for international shipping] after obtaining an EINfor international shipping would result in the loss of current AES[filing Shippers Export Declaration (SED) for international shipping]account information. However, if they are currently registered underan SSN, AESdirect filers can complete theAutomated Transition Formto migrate their account information, currently stored under the SSN account, to a new EIN for internationalshipping account. As of October 20, 2009, the Automated TransitionForm has been available on the AESdirect Web site. Those who filedirectly into the AES [filing Shippers Export Declaration (SED) forinternational shipping] must contact their CBP representative tohave their account manually transitioned. 8. Clarify whether a company or individual can use its EIN forinternational shipping as the USPPI identification number when filingon behalf of the USPPI. Several commenters wanted to know if a companyor individual could use its EIN for international shipping as the USPPI identification number when filing on behalf of the USPPI. A company that is filing in the AES [filing Shippers Export Declaration(SED) for international shipping] on behalf of an individual cannot use its EIN for international shipping. When filing the EEI on behalfof a USPPI, the EIN for international shipping of that USPPI mustbe used as the identification number. The filer's EIN for internationalshipping cannot be used as the USPPI identification number.The use of another company or individual's EIN for international shippingis prohibited. 9. Clarify the use of an EIN for international shipping forshipments to the U.S. Armed Services. Several commenters wanted to knowif an EIN for international shipping would be required for shipments to the U.S. Armed Services. Filing an AES [filingShippers Export Declaration (SED) for international shipping] record is not required for shipments to the U.S. Armed Services for their exclusive use, whether the shipments are made commercially or through government channels, including shipments to armed services exchange systems per title 15, CFR, Part 30, FTR, section 30.39. This exemption does not apply to articles on the United States Munitions List that are controlled by the International Traffic in Arms Regulations, or to shipments that are not consigned to the U.S. Armed Services, regardless of whether they may be for its ultimate and exclusive use. If an export falls under this exemption, you are not required to obtain an EIN forinternational shipping because filing an AES [filing Shippers ExportDeclaration (SED) for international shipping] record is not required. 10. Clarify the use of an EIN for international shipping forshipments to employees of government agencies. Several commenterswanted to know if government agencies or employees of these agencieswere required to obtain an EIN for international shipping for shipping purposes. Filing an AES [filing Shippers ExportDeclaration (SED) for international shipping] record is not required for the following shipments: office furniture, office equipment, and office supplies shipped to and for the exclusive use of U.S. government offices, or household goods and personal property shipped to and for the exclusive and personal use of U.S. government employees. These shipments are exempt from filing the EEI per title 15, CFR, Part 30, FTR, section 30.40. If an export falls under this exemption, you are not required to obtain an EIN for international shipping because filingan AES [filing Shippers Export Declaration (SED) for international shipping] record is not required.

Regulatory Changes

To ensure the confidentiality of the USPPI's and the U.S. authorized agent's personal information, and to comply with the Privacy Act and OMB guidance, the Census Bureau is amending relevant sections of the FTR to specify the requirements for the reporting of an EINfor international shipping, or DUNS in place of a SSN for identificationpurposes in the AES [filing Shippers Export Declaration (SED) for international shipping]. The Census Bureau is amending the following sections of the FTR: Section 30.1(c) definition for Party ID type is revised to eliminate the SSN. Sections 30.3(a) and 30.3(e) are revised to eliminate the requirement of reporting the SSN in the AES [filing Shippers ExportDeclaration (SED) for international shipping]. Sections 30.6(a) and 30.6(b) are revised to eliminate the SSN as an option for the USPPI and U.S. authorized agent identification number. The U.S. Department of State and U.S. Department of Homeland Security concur with the provisions contained in this Final Rule.

Rulemaking Requirements

Administrative Procedure Act

The Census Bureau finds good cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and opportunity for public comment, as public comment is impracticable and contrary to the public interest of maintaining the security of personal information. To ensure the confidentiality of the USPPI and the U.S. authorized agent's personal information, and to comply with the Privacy Act, the Census Bureau is amending appropriate sections of the FTR to eliminate the reporting of the SSN by USPPIs and U.S. authorized agents. If this rule were delayed to allow for notice and opportunity for public comment, USPPIs and U.S. authorized agents would continue to be required to submit their SSN to the Census Bureau if they do not have an EIN for international shippingor DUNS. Therefore, in order to maintain the security of personalinformation, and to comply with the Privacy Act, the Census Bureauhas determined that it will make this rule effective on March 24, 2010.

Regulatory Flexibility Act

Because notice and opportunity for comment are not required pursuant to 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act are inapplicable. Therefore, a final regulatory flexibility analysis is not required and one has not been prepared.

Executive Orders

This rule has been determined to be not significant for purposes of Executive Order 12866. It has been determined that this rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.

Paperwork Reduction Act

The collection of information required in this final rule has been approved by the OMB under the Paperwork Reduction Act (PRA), title 44, U.S.C. Chapter 35. This rule amends a collection of information subject to the requirements of the PRA, which has been approved under OMB control number 0607-0152. The reporting and recordkeeping burden for this requirement is estimated at three total burden minutes per AES[filing Shippers Export Declaration (SED) for international shipping] filing. Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a current, valid OMB control number.

0Accordingly, as discussed above, the interim final rule amending Title 15 Code of Federal Regulations Part 30, which published at 74 FR 38914 on August 5, 2009, is adopted as a final rule without change.